D. Planamento v. WCAB (U.S. Airways) U.S. Airways and AIG v. WCAB (Planamento) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Planamento, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (U.S. Airways), : No. 1507 C.D. 2015
Respondent :
U.S. Airways and AIG, :
Petitioners :
:
v. :
:
Workers’ Compensation Appeal :
Board (Planamento), : No. 1744 C.D. 2015
Respondent : Submitted: January 15, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 1, 2016
U.S. Airways (Employer)1 and David Planamento (Claimant) petition
this Court for review of the Workers’ Compensation (WC) Appeal Board’s (Board)
August 19, 2015 order affirming in part and denying in part the Workers’
Compensation Judge’s (WCJ) decision denying Employer’s Petition to
Suspend/Terminate (Petition) Claimant’s WC benefits. There are three issues before
this Court: (1) whether the Board erred by upholding the WCJ’s decision denying
1
AIG is Employer’s workers’ compensation insurance carrier third-party administrator.
Employer’s Petition to suspend Claimant’s benefits; (2) whether the Board erred by
reversing the WCJ’s expansion of Claimant’s work injury to include L3-4 disc
herniation and L3-4 facet disease; and, (3) whether the Board erred by upholding the
WCJ’s decision denying Employer’s Petition to terminate Claimant’s benefits. After
review, we affirm.
Claimant suffered a work-related low back strain on May 8, 2011 while
moving baggage at the Philadelphia International Airport, which caused him to stop
working. Claimant received total disability benefits pursuant to a notice of
compensation payable.2 Claimant underwent an independent medical evaluation
(IME) conducted by orthopedic surgeon John R. Donahue, M.D. (Dr. Donahue) on
December 2, 2011. Claimant returned to work on February 6, 2012, but continued
receiving partial WC benefits due to a medical restriction on his ability to work
overtime.
On February 7, 2012, Employer issued a notice that Claimant’s benefits
were suspended effective February 6, 2012. On March 13, 2012, Employer filed the
Petition, declaring therein that Claimant had fully recovered as of December 2, 2011
and returned to work at his pre-injury wages. See Reproduced Record (R.R.) at 1a.
Claimant timely denied Employer’s allegations and filed an “Employee Challenge”
(Challenge Petition). R.R. at 6a. On March 26, 2012, the WCJ granted Claimant’s
Challenge Petition and directed Employer to reinstate Claimant’s WC benefits at a
partial disability rate. Claimant has received partial disability benefits since that time.
WCJ hearings were held on March 14, April 25, October 24, 2012 and
January 23, 2013 regarding Employer’s Petition during which Employer offered Dr.
Donahue’s June 14, 2012 deposition into evidence. Claimant testified and presented
2
On June 1, 2011, Employer issued a medical-only notice of compensation payable. On
June 6, 2011, Employer issued a temporary notice of compensation payable which converted to a
notice of compensation payable by operation of law on August 23, 2011.
2
neurosurgeon Perry J. Argires, M.D.’s (Dr. Argires) October 16, 2012 deposition. By
April 17, 2013 decision, the WCJ denied Employer’s Petition because Employer
failed to prove that Claimant was either fully recovered from his work injury or
returned to work without a loss of earnings. The WCJ also appeared to expand
Claimant’s injury description to include disc herniation and facet disease. Employer
appealed to the Board.
On August 19, 2015, the Board upheld the WCJ’s denial of Employer’s
Petition, but reversed the WCJ’s decision to the extent the WCJ purported to amend
Claimant’s work injury description to include disc herniation and facet disease. On
August 21, 2015, Claimant appealed from the portion of the Board’s decision
reversing the WCJ’s work injury expansion to this Court (see 1507 C.D. 2015). On
September 18, 2015, Employer appealed from the portion of the Board’s decision
affirming the WCJ’s Petition denial to this Court (see 1744 C.D. 2015).3
Initially, Section 413(a) of the WC Act (Act)4 states, in pertinent part:
A workers’ compensation judge designated by the
[D]epartment [of Labor and Industry (Department)] may, at
any time, . . . suspend, or terminate a notice of
compensation payable, . . . upon petition filed by either
party with the [D]epartment, upon proof that the disability
of an injured employe has . . . decreased, . . . or has
temporarily or finally ceased . . . . Such . . . suspension, or
termination shall be made as of the date upon which it is
shown that the disability of the injured employe has . . .
decreased, . . . or has temporarily or finally ceased . . . .
And provided further, That where compensation has been
3
The appeals were consolidated by October 15, 2015 order. Employer is the designated
petitioner. Employer filed a petition for supersedeas, which Claimant opposed. By November 30,
2015 order, this Court denied the petition for supersedeas.
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
4
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2708.
3
suspended because the employe’s earnings are equal to or in
excess of his wages prior to the injury that payments under
the agreement or award may be resumed at any time during
the period for which compensation for partial disability is
payable, unless it be shown that the loss in earnings does
not result from the disability due to the injury.
77 P.S. § 772. “Under [the Act], the term ‘disability’ is synonymous with loss of
earning power.” Donahay v. Workers’ Comp. Appeal Bd. (Skills of Cent. Pa. Inc.),
109 A.3d 787, 792 (Pa. Cmwlth. 2015).
Employer argues that since Claimant’s receipt of partial disability
benefits is premised on Claimant’s ability to work overtime, those benefits should
have been suspended due to the Board’s finding that “there was no competent
medical evidence presented that [C]laimant was incapable of performing overtime
work” and, thus, the Board erred in affirming the WCJ’s decision not to suspend
Claimant’s benefits. Board Dec. at 7. We disagree.
A suspension is warranted under the [Act] where a claimant
has a residual physical impairment attributable to a work-
related injury but is receiving wages equal to or in excess of
what the claimant had earned in his pre-injury job.
Although the employer remains liable for the [medical]
consequences of the work-related injury, there is no longer
any ‘disability,’ i.e., loss of earning power, attributable to
the work-related injury.
McKay v. Workmen’s Comp. Appeal Bd. (Osmolinski), 688 A.2d 259, 261 (Pa.
Cmwlth. 1997) (citation omitted).
If a claimant returns to work, but is unable to work the same number of
hours due to the residual effects of his work injury, he is entitled to partial disability
benefits. See Donahay; see also Trevdan Bldg. Supply v. Workers’ Comp. Appeal Bd.
(Pope), 9 A.3d 1221 (Pa. Cmwlth. 2010); Eljer Indus. v. Workers’ Comp. Appeal Bd.
(Evans), 707 A.2d 564 (Pa. Cmwlth. 1998). However, “[i]f the reduction in earnings
is not . . . attributable to the work injury, no disability benefits are due.” Donahay,
4
109 A.3d at 793. Thus, in order to establish that a claimant’s benefits should be
suspended, an employer has the burden of proving that the claimant’s loss of earning
power was not due to the work injury. Cruz v. Workers’ Comp. Appeal Bd. (Kennett
Square Specialties), 99 A.3d 397 (Pa. 2014); see also Donahay. Moreover, in
determining WC benefits, “[o]vertime earnings must be included in the calculation of
the claimant’s average weekly wage.” Donahay, 109 A.3d at 790 n.3.
Dr. Donahue testified that he reviewed Claimant’s medical records
before Claimant’s December 2, 2011 IME. Of significance to Dr. Donahue were
degenerative changes evident on Claimant’s May 8, 2011 lumbar spine x-ray, and
May 18, 2011 MRI results reflecting broad-based, long-standing, degenerative disc
bulges at L2-3, L3-4, and L4-5, L5-S1 with facet hypertrophies stenosis.
Dr. Donahue expressed that, during the IME, Claimant recounted his
work injury and treatment history, and described that he had right anterior thigh pain,
but no lumbar complaints. Dr. Donahue reported that Claimant had no lumbar spine
tenderness, and he displayed normal lumbar range of motion and flexibility during his
examination. Dr. Donahue also recalled that Claimant had full leg range of motion
without radiating pain, his hips were pain free, he could stand on his heels and toes
and walk symmetrically, and his lower extremity reflex, sensory and motor
examinations were all within normal limits. Dr. Donahue pronounced that “there
were no objective findings.” R.R. at 16a.
Dr. Donahue explained that although Claimant’s anterior thigh pain
originates from the L3-4 area, Claimant’s L3-4 disc bulge is more evident on the left,
which does not correspond with Claimant’s right-side complaints. Dr. Donahue
described that although Claimant’s L4-5 bulge is more pronounced to the right, he
does not exhibit ankle pain that normally accompanies that condition. Dr. Donahue
concluded within a reasonable degree of medical certainty that Claimant’s work-
5
related lumbar strain had resolved, and that Claimant’s ongoing symptoms were
related to his pre-existing degenerative condition. See R.R. at 41a.
In defense of Employer’s Petition, Claimant offered Dr. Argires’
deposition testimony. Therein, Dr. Argires recalled that he first examined Claimant
during an August 21, 2011 neurosurgical consultation. He testified that Claimant’s
neurological, sensory and motor strength testing results were normal, and that
Claimant was responding well to conservative treatment and steroid injections. Dr.
Argires also reviewed Claimant’s MRI scan that revealed his right-sided L3-4 facet
disease and a herniated disc on L3-4 on the left side. Dr. Argires concluded within a
reasonable degree of medical certainty that Claimant’s low back pain was secondary
to the L3-4 disc herniation and L3-4 facet disease caused by his May 8, 2011 work
incident.
Dr. Argires declared that Claimant had a “grossly normal exam.” R.R.
at 66a. Dr. Argires acknowledged that Claimant’s MRI does not explicitly reference
a herniated disc, and considered Claimant’s L3-4 disc condition “more of a herniation
than [a] bulge[.]” R.R. at 68a. Dr. Argires described that Claimant’s spine had
“pretty extensive multi-level issues . . . most pronounced [] at L3-4,” and pronounced
facet disease. R.R. at 67a-68a. He further stated that although left-side herniation
would cause left-sided symptoms, Claimant’s right-sided leg symptoms could easily
result from the stenosis and facet disease, particularly when, as here, the herniation
was in the midline. However, Dr. Argires admitted that some of Claimant’s
degenerative changes and the L3-4 herniation could have pre-existed Claimant’s
work injury, and/or could have been the result of Claimant’s scoliosis or multi-level
disc desiccation (i.e., drying out) due to age, and that Claimant’s morbid obesity
and/or diabetes could cause low back pain.
Dr. Argires examined Claimant again on January 24, 2012 and reported
that although Claimant was still “having some symptoms,” “he was much improved.”
6
R.R. at 77a. Dr. Argires recounted issuing Claimant a medical release on January 24,
2012 to return to full-duty work using a lumbar corset, and to see Dr. Argires only on
an as-needed basis. Dr. Argires recalled that Claimant did not want any weight
restrictions because he wanted to keep his job, so he honored Claimant’s request.
Although Dr. Argires has not seen Claimant since January 2012, his father, Dr. James
Argires, issued a work release status sheet on March 26, 2012 restricting Claimant
from working overtime in the plane or stacking bags, but allowing Claimant to work
overtime “in the bag chute.” R.R. at 61a. Dr. Argires did not agree with Dr.
Donahue that Claimant could have been recovered from his work injury as of
December 2, 2011, since Claimant continued to experience symptoms. However, Dr.
Argires acknowledged that Claimant could have reached his pre-injury baseline by
the time of Dr. Argires’ October 2012 deposition. See R.R. at 81a.
Claimant testified that from May 2011 until he returned to work in
February 2012 with a back brace, his condition improved “[a] little bit,” but he still
experiences pain for which he takes medication three times a day. R.R. at 104a.
Claimant described that while he continues to do his job, he must do it differently and
more slowly. Claimant articulated that he worked more than 40 hours per week
before his work injury, but is now unable to work overtime because he cannot put
more than 8 hours of pressure on his back. He articulated that working in the plane
consists of throwing bags from a conveyor to a cart and then kneeling and throwing
the bags from the plane’s back door and stacking them. Claimant acknowledged that
he could work overtime outside the plane, but he is not permitted to select overtime
he performs. See R.R. at 114a.
Based upon the foregoing, the WCJ made the following findings:
6. I have carefully reviewed Claimant’s testimony and find
it to be credible and worthy of belief. This determination is
based in part on my personal observation of Claimant’s
demeanor during testimony. Claimant’s testimony
7
regarding his ongoing symptoms and his job duties has not
been rebutted by other evidence. Also significant to
Claimant’s credibility is his long tenure in his position, and
his willingness to return to work in spite of ongoing
symptoms. Accordingly, Claimant’s testimony as
summarized above is accepted as fact.
7. I have carefully reviewed the medical evidence
presented in this matter and find that the testimony of Dr.
Argires is more credible than the testimony of Dr. Donahue.
Dr. Argires’ testimony is supported by diagnostic test
results and is consistent with Claimant’s credible testimony
regarding his continued back pain. Dr. Argires’ testimony
relating the disc herniation and facet disease to Claimant’s
work injury is credible, given Claimant’s sudden onset of
pain at the time of the injury, and his lack of any prior back
complaints. Dr. Donahue’s opinion of full recovery is not
credible, given the heavy nature of Claimant’s work duties
and given his ongoing symptoms.
8. Based upon the testimony of Dr. Argires I find that
Claimant has not fully recovered from his May 8, 2011
work injury. I find that Claimant is able to return to full
duty work, with restrictions that Claimant should not work
overtime in the plane or stacking bags. To the extent that
the testimony of Dr. Donahue conflicts with these findings,
such testimony is rejected.
WCJ Dec. at 4.
It is well established that “[t]he WCJ is the ultimate factfinder and has
exclusive province over questions of credibility and evidentiary weight.” Univ. of
Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). “The WCJ, therefore, is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp.
Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Thus, neither the
Board nor the Court may reweigh the evidence or the WCJ’s credibility
determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771 A.2d 1246 (Pa.
2001). In addition, “Section 422(a) [of the Act, 77 P.S. § 834,] does not permit a
party to challenge or second-guess the WCJ’s reasons for credibility determinations.
8
Unless made arbitrarily or capriciously, a WCJ’s credibility determinations will be
upheld on appeal.” Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.),
893 A.2d 191, 195 (Pa. Cmwlth. 2006) (citation omitted). This Court has stated:
‘[I]t is irrelevant whether the record contains evidence to
support findings other than those made by the WCJ; the
critical inquiry is whether there is evidence to support the
findings actually made.’ [Minicozzi v. Workers’ Comp.
Appeal Bd. (Indust. Metal Plating, Inc.), 873 A.2d 25, 29
(Pa. Cmwlth. 2005)] (quoting [Del.] [Cnty.] v. Workers’
Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa.
Cmwlth. 2002)). We review the entire record to determine
if it contains evidence a reasonable mind might find
sufficient to support the WCJ’s findings. If the record
contains such evidence, the findings must be upheld even
though the record contains conflicting evidence.
Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa.
Cmwlth. 2007) (citation omitted). Moreover, this Court has held:
‘Substantial evidence is such relevant evidence as a
reasonable person might accept as adequate to support a
conclusion.’ Waldameer Park, Inc. v. Workers’ Comp.
Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth.
2003). ‘In performing a substantial evidence analysis, this
court must view the evidence in a light most favorable to
the party who prevailed before the factfinder.’ Id.‘Moreover, we are to draw all reasonable inferences which
are deducible from the evidence in support of the
factfinder’s decision in favor of that prevailing party.’ Id.3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings
Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007). Based upon its review of the record
evidence and in light of the WCJ’s role as factfinder, the Board stated:
The record is clear that Dr. Argires acknowledged that he
released Claimant to return to full unrestricted work in
January 2012, but that it was his father, Dr. James Argires,
who 2 months later restricted Claimant from performing
overtime work on the plane and stacking bags. There was
no testimony from Dr. James Argires[,] and Dr. Argires
9
further acknowledged that there were no notes in the
Claimant’s medical file regarding the restriction. While we
agree that there was no competent medical evidence
presented that [C]laimant was incapable of performing
overtime work, the Claimant, however, testified that he
did not feel capable of performing overtime work due to
continued back pain. The WCJ accepted his testimony
regarding his continued pain as credible and, thus, the
acceptance of such testimony formed a sufficient basis for
denying the [] Petition.
Board Dec. at 7 (emphasis added).
Indeed, the Board concluded that “there was no competent medical
evidence presented that [C]laimant was incapable of performing overtime work[.]”
Board Dec. at 7. However, Employer has the burden of proving that Claimant “is
receiving wages equal to or in excess of what [he] had earned in his pre-injury job.”
McKay, 688 A.2d at 261. Employer failed to present any evidence that Claimant was
capable of working overtime in the plane as he did before his work injury.
Moreover, the Board stated that the WCJ properly deemed credible
Claimant’s testimony that he continued to experience ongoing pain and did not feel
capable of overtime work as a result. “The determination of whether a claimant’s
subjective complaints of pain are accepted is a question of fact for the WCJ.” Udvari
v. Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997).
Under circumstances where, as here, competent evidence supports the WCJ’s finding
that Claimant’s testimony regarding his “ongoing symptoms” was credible, the Board
and this Court must uphold it on appeal. WCJ Dec. at 4; see also Lahr Mech.
Viewing the evidence in a light most favorable to Claimant, as we must,
and drawing all reasonable inferences which are deducible from the evidence the
WCJ deemed credible, we hold that there was substantial evidence to support the
conclusion that Claimant was incapable of working overtime in the plane. Thus, the
10
Board did not err by affirming the WCJ’s determination denying Employer’s Petition
to suspend Claimant’s partial disability benefits.
Claimant argues that the Board erred by reversing the WCJ’s expansion
of Claimant’s work injury to include L3-4 disc herniation and L3-4 facet disease. We
disagree.
The WCJ’s Finding of Fact 7 states, in relevant part: “Dr. Argires’
testimony relating the disc herniation and facet disease to Claimant’s work injury is
credible, given Claimant’s sudden onset of pain at the time of the injury, and his lack
of any prior back complaints.” WCJ Dec. at 4. After reviewing the record, the Board
found:
[Dr. Argires] also would not agree that Claimant’s ‘bulges’
were not ‘herniations.’ Rather, he felt that the MRI was up
for interpretation, and his opinion was that the MRI studies
showed that Claimant had a herniation at L3-4. Dr. Argires
admitted that the herniation at L3-4 ‘could have’ preexisted
the May 8, 2011 work-related injury, and that much of the
pathology shown on the objective studies was degenerative.
He also admitted that Claimant’s degenerative disc
desiccation could cause his discs to herniate, and that
Claimant’s scoliosis could cause his disc bulges. He also
admitted that the MRI findings of degeneration were normal
for Claimant’s age.
Board Dec. at 5. Based thereon, the Board concluded
that the WCJ erred in amending the [work injury]
description to include a disc herniation and facet disease. A
review of Dr. Argires[’] testimony reveals [the] same to be
equivocal and not sufficient to support a finding that the
disc herniation and facet disease were work[-]related. Thus,
to the extent the WCJ intended to expand the description of
injury in Finding of Fact [] 7, such was in error and we
conclude that the description of injury remains a low back
strain.
Board Dec. at 8. Finding no error in the Board’s reasoning, we do not disturb its
holding on this issue.
11
Employer also argues that the Board erred by upholding the WCJ’s
decision not to terminate Claimant’s benefits where the Board found Dr. Argires’
testimony regarding Claimant’s work injury description equivocal, and Dr. Argires
conceded that Claimant may have returned to his pre-injury baseline.5 We disagree.
“To succeed in a termination petition, an employer bears the burden of
proving by substantial evidence that a claimant’s disability ceased, or any remaining
conditions are unrelated to the work injury.” Westmoreland Cnty. v. Workers’ Comp.
Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). The burden is
substantial, since disability is presumed to continue unless and until proved
otherwise. Giant Eagle, Inc. v. Workmen’s Comp. Appeal Bd. (Chambers), 635 A.2d
1123 (Pa. Cmwlth. 1993).
In a case where the claimant complains of continued pain,
this burden is met when an employer’s medical expert
unequivocally testifies that it is his opinion, within a
reasonable degree of medical certainty, that the claimant is
fully recovered, can return to work without restrictions
and that there are no objective medical findings which
either substantiate the claims of pain or connect them to
the work injury. If the WCJ credits this testimony, the
termination of benefits is proper.
Udvari, 705 A.2d at 1293 (emphasis added; footnote omitted); see also Elberson v.
Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007).
It is not clear to this Court that the WCJ expressly intended by Finding
of Fact 7 to expand Claimant’s work injury. However, to the extent that the WCJ so
intended, the Board reversed on the basis that Dr. Argires’ testimony that Claimant’s
work injury also resulted in disc herniation and facet disease was equivocal.
5
Employer also claimed that the Board’s error in upholding the WCJ’s decision was due to
a lack of record evidence to support the Board’s conclusion that Claimant was restricted from
overtime work. Because the Board’s conclusion that Claimant was restricted from overtime work
was based upon substantial evidence, Employer’s argument on this issue fails.
12
Notwithstanding, Claimant’s accepted work injury was at all times limited to low
back strain, which Dr. Argires did not dispute. At no time did the WCJ or the Board
declare Dr. Argires’ testimony regarding Claimant’s accepted low back strain
equivocal.6 Under the circumstances, the Board’s finding that Dr. Argires’ testimony
regarding Claimant’s purported expanded work injury description was equivocal, is
not a basis upon which this Court may reverse the WCJ’s decision denying
Employer’s Petition.
Second, although Dr. Argires acknowledged the possibility that
Claimant may have returned to his pre-injury baseline, the testimony is clear that the
timeframe referenced was Dr. Argires’ October 16, 2012 deposition rather than when
the Petition was filed. See R.R. at 81a.7 Since Dr. Argires had not seen Claimant
since January 24, 2012, his statement that Claimant may have returned to his pre-
injury baseline as of October 2012 would certainly be equivocal. Thus, Dr. Argires’
6
Employer’s contention that “[s]ince Dr. Argires was found equivocal as to the [expanded]
injury description, Dr. Donahue must be found unequivocal[,]” has no merit. Employer Br. at 16.
The WCJ was free to accept or reject the testimony of either medical expert and afford it weight.
Griffiths. There is no legal basis for Employer’s claim that affording less weight to Dr. Argires’
testimony on the expanded injury issue requires that Dr. Donahue’s testimony on the overtime work
issue must be weighed more heavily.
7
The specific testimony was:
Q Now, is it possible that [Claimant] could have reached his pre-
injury baseline at this point?
A Is it possible? Is that what you said? Is it possible?
Q Yes.
A At this point in time? Like whether he’s there now?
Q Yes.
A It’s possible, yes.
R.R. at 81a.
13
concession that Claimant may have returned to his pre-injury baseline cannot form
the basis for reversing the WCJ’s decision denying Employer’s Petition.
Viewing the evidence in a light most favorable to Claimant, as we must,
and drawing all reasonable inferences which are deducible from the evidence the
WCJ deemed credible, we hold that Employer failed to prove that Claimant fully
recovered from his work injury or that Claimant can work without restriction. Thus,
the Board did not err by affirming the WCJ’s decision denying Employer’s Petition to
terminate Claimant’s partial disability benefits.
Based upon the foregoing, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Planamento, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (U.S. Airways), : No. 1507 C.D. 2015
Respondent :
U.S. Airways and AIG, :
Petitioners :
:
v. :
:
Workers’ Compensation Appeal :
Board (Planamento), : No. 1744 C.D. 2015
Respondent :
ORDER
AND NOW, this 1st day of July, 2016, the Workers’ Compensation
Appeal Board’s August 19, 2015 order is affirmed.
___________________________
ANNE E. COVEY, Judge